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§ 40. onear to St. John's, 20 miles, and a tri-weekly mail from St. John's to London. The delay was not explained. The jury found the delay to be unreasonable and the Court refused a new trial: Straker v. Graham, 4 M. & W. 721 (1839).
Rules as to
6. A bill drawn at Calcutta, February 16th, on Hong Kong at 60 days after sight was indorsed and negotiated by the drawers. On account of the state of the money market the indorsee kept it five months and then negotiated it. The holder presented it on October 24th, to the drawee at Hong Kong, who refused to accept it. The Supreme Court at Calcutta, found the delay unreasonable, and the Privy Council would not disturb the finding Mullick v. Radakissen, 9 Moore P. C. 46 (1854).
41. A bill is duly presented for acceptance ment for which is presented in accordance with the following rules:
By or for holder.
Hour and day.
(a.) The presentment must be made by or on behalf of the holder to the drawee or to some person authorized to accept or refuse acceptance on his behalf, at a reasonable hour on a business day and before the bill is overdue: Imp. Act, s. 41 (1) (a).
The holder by whom or whose behalf a bill is presented need not be the owner or even a lawful holder: section 2 (g); Morrison v. Buchanan, 6 C. & P. 18 (1833); Nouguier, § 462.
As to what is a reasonable hour may depend on where the bill should be presented. If at a bank it should be during banking hours; if at another office, during ordinary office hours; if at a private house, it may be earlier in the morning or later in the evening: Parker v. Gordon, 7 East, 385 (1806); Elford v. Teed, 1 M. & S. 28 (1813). Wilkins v. Jadis, 2 B. & Ad. 188 (1831); Cayuga Co. Bank
v. Hunt, 2 Hill (N. Y.) 635 (1842). Any day is a business § 41. day except those mentioned in section 14: see section 91. A bill should be presented for acceptance before maturity. If accepted after maturity it becomes a bill payable on demand, and should then be presented for payment within. a reasonable time so as to bind indorsers after acceptance: section 45, s-s. 2 (b).
The Act does not give precise directions as to the Mode of presentment of a bill for acceptance. Some of the rules ment. laid down in section 45 as to presentment for payment are no doubt applicable; but there is a difference in principle. between the two presentments, the former being personal, and the latter local. Where a drawee has accepted a bill he knows when and where it will be presented for payment, and all that is required is that some person on his behalf shall be there at the time with the money to hand over, and to receive the bill. In the case of a presentment for acceptance, however, even if advised by the drawer of the drawing, he may not know when the holder may choose to present it.
When a bill is payable 15 days after sight a demand of payment unaccompanied by a presentment for acceptance is insufficient, and the action will be dismissed: Cousineau v. Lecours, M. L. R. 4 S. C. 249 (1888). The bill should be actually exhibited to the drawee: Fall River U. Bank v. Willard, 5 Metcalf (Mass.) 216 (1842).
(b). Where a bill is addressed to two or more To drawees drawees, who are not partners, presentment must ners. be made to them all, unless one has authority to accept for all, when presentment may be made to him only; Imp. Act, s. 4 (b).
If all the drawees do not accept, the acceptance is a qualified one: section 19, s-s. 2 (d); and the holder should
§ 41. either notify the drawer and indorsers, or treat the bill as dishonored by non-acceptance; otherwise the drawer and indorsers will be discharged: section 44.
Through the post.
(c.) Where the drawee is dead, presentment may be made to his personal representative; Imp. Act, s. 41 (c.)
As to the law in England, Chalmers says, p. 187, "Before this enactment the law on this point was very doubtful": Smith v. New South Wales Bank, 8 Moore P. C. N. S. 461, 462 (1872). In Quebec the rule was laid down in Art. 2290 C. C.: "If the drawee be dead or cannot be found and is not represented, presentment is made at his last known domicile or place of business."
It will be observed that presentment to the personal representative is optional with the holder. He may treat the bill as dishonored by non-acceptance without presenting it at all: sub-section 2.
(d.) Where authorized by agreement or usage, a presentment through the post office is sufficient: Imp. Act, s. 41 (e).
"This enactment gives effect to the recognized practice among English merchants": Chalmers, p. 137. Long before the Act it had been well established with regard to cheques Bailey v. Bodenham, 16 C. B. N. S. 288 (1864); Prideaux v. Criddle, L. R. 4 Q. B. 461 (1869); Heywood v. Pickering, L. R. 9 Q. B. 432 (1874).
No such usage, it is believed, has yet been established in Canada.
As to presentment for payment through the post, or at the post office, see section 45, s-s. 6 and 7.
2. Presentment in accordance with these rules § 41. is excused, and a bill may be treated as dishonored Excuses by non-acceptance
(a.) Where the drawee is dead, or is a fictitious person or a person not having capacity to contract by bill: Imp. Act, s. 41 (2) (a); 54-55 Vict. c. 17, s. 6 (Can.).
Where the drawee is dead the holder may either treat Drawee the bill as dishonored by non-acceptance or may present it to his personal representative: sub-section 1 (c).
The Act of 1890 read "Where the drawee is dead or bankrupt," following the Imperial Act. As there is no bankrupt law law in Canada the words were struck out in other places, but left in here by inadvertence. They were struck out by the amending Act of 1891. Where there has been an assignment for the benefit of creditors, or an abandonment of his estate, by a debtor under a provincial Act, presentment should still be made to him.
As to a fictitious drawee, see section 5, s-s. 2; and as to capacity to contract by bill, see section 22.
(b.) Where, after the exercise of reasonable Present. diligence, such presentment cannot be effected; Imp. Act, s. 41 (2) (b).
Reasonable diligence is a question to be determined according to the facts and circumstances of each particular case see section 45, s-s. 2, and section 50, s-s. 2 (a).
(c.) Where, although the presentment has been Ground of irregular, acceptance has been refused on some other ground: Imp. Act, s. 41 (2) (c).
This is on the ground of estoppel. A refusal to accept is an acknowledgment of the sufficiency of the presentment.
3. The fact that the holder has reason to believe
No excuse. that the bill, on presentment, will be dishonored does not excuse presentment. Imp. Act, s. 41 (3).
Two days to accept.
This was the law in England before the Act: ex parte Tondeur, L. R. 5 Eq. 165 (1867).
A similar rule prevails as to presentment for payment: section 46, s-s. 2 (a).
42. When a bill is duly presented for acceptance and is not accepted on the day of presentment or within two days thereafter, the person presenting it must treat it as dishonored by non-acceptance. If he does not, the holder shall lose his right of recourse against the drawer and indorsers. Imp. Act, s. 42.
In the Imperial Act a bill is to be treated as dishonored if it is not accepted "within the customary time." In the Canadian bill the same expression was used. It was changed in the Commons so as to require acceptance on the day of presentment or on the next business day, which was in accordance with Canadian usage, at least in the principal cities of Ontario and Quebec. In the Senate the time was extended to two days. This means two business days section 91. If in cases of urgency, say for instance where a demand draft is attached to a bill of lading of perishable goods, a more speedy acceptance is required, special instructions should be given, as otherwise the drawee would be justified in claiming and the party presenting the bill in granting the delay mentioned in the Act. In case of a draft on a known business house the usual practice is to leave the bill for acceptance. If it is detained by the drawee protest may be made on a copy or written particulars of the bill section 51, s-s. 8.